Can I Use Text Messages in My California Divorce ?
If you are going through a divorce, you may be wondering what types of evidence you can use that may include text messages, DMs (direct messages through social media), and emails which can potentially provide evidence in court.
These days, communication often happens through text messages which is generally an easy way to talk with anyone, no matter their location, including your spouse.
Text messages are commonly used as evidence during California divorce proceedings, although not all text messages are considered equal. This article will discuss when and what types of text messages can be utilized as evidence in a California divorce.
Relevant Text Messages Between Spouses
California is a no-fault divorce state, so neither side is required to prove that the other person is the one responsible for the ending of the marriage. However, text messages between spouses can be submitted as evidence in a California divorce case. Remember, however, that your spouse has an equal weight to produce all your text messages.
Text messages can sometimes show the ugly side of a marital relationship, especially when the conversation becomes argumentative and when one or both parties send threatening text messages. Text messages can also prove that your spouse is engaged in an extramarital relationship or criminal activity.
Your divorce attorney can help determine whether or not your text messages are relevant, as you don’t want to waste the time of the court just because you are angry. Here are some valid reasons to submit text messages during a divorce and provide evidence that your spouse:
- Is committing domestic violence, which includes verbal, emotional, mental, or physical abuse
- Is neglecting childcare
- Has a substance or alcohol abuse problem
- Is harassing or threatening you
- Is abusing or neglecting the children
- Has chosen social engagements, work, or other personal pursuit pursuits over the responsibility of their child-rearing responsibilities
- Is trying to hide marital assets
These issues and more can influence child custody, restraining orders, and the separation of assets. Your family law expert in Kern County, California, can help you decide if the content of the text messages is relevant to your case.
Relevant Text Messages Between Your Spouse and Third Parties
Should you have any reason to believe that your spouse has been sending messages to a third party that may be relevant to your divorce, you may also be able to obtain copies of these text messages through the formal discovery process.
For example, suppose your spouse is sending messages to a business partner that show incriminating evidence or having an extramarital affair. In that case, you may need to subpoena the person who is sending or receiving the text messages from your spouse to use them in the divorce proceedings.
However, make sure you avoid trying to access text messages by logging into your spouse’s phone or using any other snooping methods, as you could harm your divorce case. Make sure you discuss your legal options with an experienced family law attorney in Bakersfield, California.
Authentication Of Text Messages
All text messages, DMs, emails, and other electronic messages used as evidence in a California divorce court will be required to be authenticated, and you must prove that your spouse sent them.
The California Evidence Code also determines ways you can authenticate electronic communications. For a text message to be authenticated, it means that:
- The other person must admit to sending the message
- A witness must testify that they saw the message being created
- A reply authentication must be shown, which happens when a reply message is sent in response to the original message
- If a message references something that only the other person would know about or understand
Authentication is necessary to determine if you can utilize text messages in a California divorce if it verifies them as legitimate evidence. Your divorce attorney will be able to tell you how and if you can authenticate the text messages to use them in a California divorce. source
Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts
Can I Use Text Messages in My California Divorce?
Two-Steps And Voila: How To Authenticate Text Messages
How Your Texts Can Be Used As Evidence?
California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests
case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees
Public Records Practices After the San Jose Decision
The Decision Briefing Merits After the San Jose Decision
Can Text Messages Be Used in California Divorce Court?
What You Need to Know About Using Text Messages in California Divorce Court
Texting is one of the most common and convenient mediums of communication between many people, including spouses. Here’s what you need to know about how text messages can be used in California Divorce Court.
An increased amount of divorce cases have been using text messages as evidence to be considered in court. Generally, text messages are considered evidence and can be considered in a court hearing if it fits a hearsay exception and is authenticated.
What is Considered Evidence in California Divorce Court?
The California courts consider two types of evidence: people and things. People can serve as evidence in the form of witness testimony, and can provide information on the case.
The California courts consider things as forms of evidence as well, including photographs, records (police, medical, bills, school, etc.) and other documents, including texts.
Getting Authentication of Text Messages
For a text message to be used as evidence in California Divorce Court, it must be authenticated, meaning that the other party must admit to sending the message, a witness must testify that they have seen the message being created or reply authentication must be demonstrated. Reply authentication is demonstrated when a reply message is clearly sent in response to the original message.
The California Evidence Code also dictates ways in which electronic communications can be authenticated, such as if the message references something only the other party would know about or understand.
Authentication is important and necessary in the process of utilizing text messages in California Divorce Court because it verifies that the messages are legitimate evidence and not hearsay.
Related: Divorce and Family Law Courthouses in Los Angeles
Can a Divorce Lawyer Subpoena Text Messages in California?
A subpoena refers to one requiring the presentation of certain evidence to a court of law. A divorce lawyer can subpoena text messages in California.
However, it is important to consider that it is rare for cell phone companies to retain the content of text messages for long periods of time. Most companies keep logs of the dates and times at which messages were sent, but the content is kept for a short period of time, if it is kept at all.
It is recommended for those who wish to present text messages in court to download and keep screenshot copies of the messages.
FAQs About Using Text Messages in California Divorce Court
What kinds of messages should I present to the California Divorce Court?
Presenting relevant messages can help your argument in a divorce case. If your spouse sent you text messages related to child abuse or neglect, domestic violence, alcohol or substance abuse or harassment and threatening, these messages can help you in your divorce case, as they also contribute to consideration in things like child custody disputes, restraining orders, and division of assets.
Related: What to Do If Your Husband is Texting Another Woman
How far back can text messages presented in California Divorce Court go?
As long as the text messages can be authenticated and fit a hearsay exception, the message can generally be considered as evidence in California Divorce Court.
Can I present messages sent from someone else that isn’t my spouse or domestic partner?
Yes, although the process of authenticating these messages may be more complicated and difficult. Generally, you may need to subpoena the third party or call them as a witness to use these messages as evidence.
Why is it so difficult to subpoena text messages?
It’s difficult to subpoena text messages because cell phone companies generally do not keep records of the content of text messages for very long, if at all. While the dates and times that text messages were sent are usually saved, finding the actual content of the messages is much more difficult, and can make subpoenaing them nearly impossible. source
Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts
Can I Use Text Messages in My California Divorce?
Two-Steps And Voila: How To Authenticate Text Messages
How Your Texts Can Be Used As Evidence?
California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests
case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees
Public Records Practices After the San Jose Decision
The Decision Briefing Merits After the San Jose Decision
Can Text Messages Be Used In Divorce Court?
These days, most people use text messages as one of their primary modes of communication. While this makes communication easy in a lot of ways, it can also provide evidence in courts of all kinds. Increasingly, Los Angeles family law attorneys see that people want to use text messages as evidence in their divorce proceedings.
Most families enjoy the convenience of communicating with their spouse or children instantly with technology. Regardless of location, you can easily send text or direct messages from your social media accounts.
However, these text messages can also reveal an ugly side in a marital relationship. For example, spouses might become engaged in a bitter argument and start sending threatening text messages. Also, these messages might prove a spouse is engaged in an extramarital relationship or even criminal activity.
If the relationship ends, these text messages could show up in divorce proceedings as incriminating evidence against the spouse in order for the other spouse to be awarded martial or to win a bitter child custody battle.
Text messages have become a common form of evidence during California divorce proceedings. However, when using text messages as evidence in a divorce court, not all messages are considered equal.
This means spouses who are getting divorced need to understand what type of messages could be used to their advantage during the divorce process.
Generally, text messages can be admissible as evidence in family court. However, you must determine the answers to a few important questions before presenting text messages in a family court.
To give readers a better understanding about the use of text messages or emails in a California divorce, our Los Angeles family law attorneys are providing an overview below.
Are The Texts Relevant?
California is a no-fault divorce state. As such, neither party has to prove that the other is responsible for the deterioration of the marriage. If the reason you want to submit the text messages is that you want to show your spouse is responsible for the divorce, it’s better to ditch the texts.
The court does not care about fault or why the relationship ended. The last thing you want to do is appear to waste the court’s time out of spite. However, there are many valid reasons for submitting text messages during divorce proceedings. You may want to provide evidence that your spouse:
- Is attempting to hide marital assets
- Commits abuse or neglect against children
- Commits domestic violence
- Neglected child care or support in favor of socializing
- Has an alcohol or substance abuse issue
- Harasses or threatens you
All of these issues and more can affect child custody, restraining orders, and even the separation of assets. Your Los Angeles family law attorney can help you determine if the content of the messages are relevant to the overall case.
Were The Messages Obtained Legally?
Any electronic messages used as evidence in a California divorce court must be authenticated. This means it must be proven their spouse sent the text messages.
Receiving authentication could come in the form of getting your spouse to admit they created and sent the messages, but the court might allow a third-party eyewitness.
If your spouse sent the text messages to your phone, the messages are fair game for divorce proceedings. Furthermore, if the evidence exists on a shared device, you can typically use them as well. In some cases, you may go through a legal process to obtain messages on your spouse’s personal devices.
However, you should never hack into your spouse’s device or steal passwords in order to collect this evidence. Not only will the messages be inadmissible, but attempting to submit stolen messages may reflect poorly on you.
Were The Texts Sent From Your Spouse?
If the text messages came from your spouse to you, nobody else needs to take the stand in order to present the evidence. However, you could also get incriminating texts from other people in your lives.
For example, if your ex-spouse’s new partner sends incriminating messages, you may need to subpoena the person who sent the messages. Generally, if you have text messages from your spouse, they can be used as evidence during your divorce.
Some common examples why text messages between spouses can be relevant to divorce proceedings include proving one spouse is having an affair or attempting to hide assets. They are also commonly used to prove your spouse has not been honest with the court on a variety of issues during the divorce process.
Are The Messages Authenticated?
Even when a message comes from a person’s phone, you cannot be sure that the phone’s owner sent the message. Anyone with access to the person’s phone could, in theory, send text messages while pretending to be the phone’s owner.
As such, California law requires text messages to be authenticated before being admitted to court.
Several California laws dictate how electronic communications can be authenticated. Below are the evidence code numbers and examples of when they may apply:
- Evidence Code § 1410 – the evidence code does not limit the means by which communication may be authenticated
- Evidence Code § 1413 – a witness saw the person send the message and attests to witnessing this action
- Evidence Code § 1420 – the context of the message shows the message was a reply from the person in question
- Evidence Code § 1421 – in the message itself, the person says something that only they would know
By looking at your texts, your attorney can let you know how you can authenticate the messages.
How Do You Come Across In The Texts?
There are at least two sides to every divorce. When reading the text messages in question, it may be clear to you that the other person is in the wrong.
However, it’s important to take a step back and consider what others may think of the messages you sent during the conversation.
The truth is that all people can get heated sometimes, especially in the middle of a contentious divorce. While it may be understandable if you lost your temper, presenting those texts in court may hurt your case more than help it.
This is another case in which the help of an expert attorney can help, as they see these judges often and may have seen similar cases before.
Hire A Los Angeles Family Law Attorney For Help
California divorce proceedings are typically stressful and time-consuming, especially if they involve child custody hearings or a large amount of marital assets to divide between the spouses.
You should always seek the advice of an experienced attorney who handles family law matters in the state of California. Our Los Angeles divorce and family law attorneys help spouses throughout Southern California with their legal issues.
If you need more information about using your spouse’s text messages during your divorce, call our office to review the details and legal options. If you are unsure about any part of the divorce process in California, be sure to hire experienced Los Angeles family law attorneys. source